Whistleblower Failed Burden of Proof In Challenge to Her Removal

A federal attorney who was fired claims that it was done in retaliation for being a whistleblower. The MSPB said it had no jurisdiction, saying she failed to make her case. See how the federal appeals court has now ruled on her appeal.

This recent decision by the appeals court added up to bad news for a federal attorney removed from her job with the Federal Election Commission (FEC) not long after she tried to upend President Obama’s nomination of her former DOJ supervisor to serve as an FEC Commissioner. (Mitskog v. Merit Systems Protection Board (CAFC No. 2016-2359 (nonprecedential) 3/13/17)) These facts are found in the appeals court’s decision.

Ms. Mitskog served for two years as an attorney in the Office of Consumer Litigation of the Department of Justice (DOJ). While there, she complained about actions of her supervisor, who Mitskog claimed was diverting appropriations intended to prosecute healthcare fraud and using them instead for prosecution of other fraud cases. She sent her allegations to the DOJ Inspector General, as well as to the State Bar of California (presumably because supervisor Ravel was a member of that Bar) and various members of Congress. (As the court notes, there is nothing in the record before it indicating how all of these complaints came out in the end. Opinion p. 2)

After her brief tenure at DOJ, the Federal Election Commission (FEC) hired Mitskog as an Enforcement Division attorney. One year later then President Obama nominated Ann Ravel (Mitskog’s DOJ supervisor she had accused of wrongdoing) to serve as an FEC Commissioner.

Mitskog proceeded to send Ms. Ravel emails referencing her complaints about Ravel’s handling of DOJ funds and threatening to “blow up [her] nomination” to the FEC. (p. 2)

When Ms. Ravel forwarded Mitskog’s emails to FEC officials, the situation instead blew up Mitskog’s tenure as an FEC attorney. FEC removed her from her attorney position for “conduct unbecoming a federal employee.” (p. 2)

Mitskog complained to the Office of Special Counsel (OSC), the repository for receiving and investigating allegations involving violations of the Whistleblower Protection Act. She alleged the firing was in retaliation for her whistleblowing at the DOJ concerning Ms. Ravel’s allegedly illegal activities. The OSC eventually ended its investigation and advised Mitskog that she could take her Individual Right of Action appeal to the Merit Systems Protection Board (MSPB). She did just that. However, the Board ruled that it had no jurisdiction because she had failed to make her case that she was a whistleblower and she did not exhaust her remedies with the OSC. (p. 3)

She has now fared no better at the appeals court. The court agreed with MSPB that Mitskog failed to provide specificity as to her whistleblower status. She provided only conclusory statements as opposed to specific instances of whistleblowing.

The court points out that the employee has the burden of proving administrative remedies were exhausted before OSC: “We require that the employee articulate with reasonable clarity and precision…the basis for [the employee’s] request for corrective action under the WPA to allow OSC to effectively pursue an investigation.” (p. 3)

Her OSC complaint was broadly worded, and lacked “the precision necessary to have allowed OSC to effectively pursue an investigation.” (p. 4)

The hard lesson is that simply saying one is a whistleblower does not actually make it so. Not being so, it cannot be raised as a challenge to one’s removal.

Mitskog v. MSPB (2016-2359)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.